VAN DEWATER AND VAN DEWATER, LLP

COUNSELORS AT LAW

John B. Van DeWater (1892-1968) 85 CIVIC CENTER PLAZA, SUITE 101 Noel deCordova, Jr. (Retired)
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Audrey Friedrichsen Scott

October 8, 2010

Shadie Farazian
YouTube.com
901 Cherry Avenue
San Bruno, CA 94066

Re: Orleans

Dear Ms. Farazian:

I represent the Nan Hayworth For Congress campaign and

write to urge YouTube to exercise its discretion to allow the
supporters of Ms. Hayworth to exercise their right to engage in
political speech under the First Amendment by restoring the
“Vote With Me” video.
As you may know, Ms. Hayworth is a candidate for
Congress, running against John Hall, who was previously a member
of the musical group Orleans.
The satirical video “Vote With Me” simply supports Ms.
Hayworth’s campaign, and it presents no copyright or trademark
infringement, nor any commercial or other threat to the owners
of the Orleans trademark and copyrights.
 The Hayworth campaign agrees that all applicable
statutes, including the Lanham Act (Trademark) and Copyright
Act, should be complied with; but at the same time it believes
that Ms. Hayworth’s supporters should be allowed to engage in
First Amendment-protected political speech through popular and
effective media outlets like YouTube.
“[T]he First Amendment ‘has its fullest and most
urgent application’ to speech uttered during a campaign for a
political office”. Burson v. Freemen, 504 U.S. 191 at 116, 20
Media Law Reporter 1137 (1992) ... it is ‘at the core of our
First Amendment freedoms’ Republican Party v. White, 536 U.S.
765 at 774 (2002). Statutes which regulate such protected
speech are subject to “strict scrutiny”, and must “serve a
compelling state interest and ... [b]e narrowly drawn to achieve
that end” if they are to be upheld. Burson at 198.
This broad Constitutional protection for speech –
particularly political speech – should be compared with the
scope of the Lanham Act, which “covers only commercial speech
...”, Proctor & Gamble vs. Amway, 29 Media Law Reporter 1449 at
1454 (5th Circuit 2001). Speech “is commercial when it is an
‘expression relating solely to the economic interest of the
speaker and its audience’”. Proctor & Gamble vs. Amway at 1456
citing Central Hudson v. Public Service Commission, 447 U.S. 557
at 561, 6 Media Law Reporter 1497 (1980).
Granted, “... commercial speech is not accorded the
full protection given to political speech [or] speech on matters
of public concern ...” Proctor & Gamble at p. 1456, but my
client and her supporters are not engaged in commercial speech.
The U.S. 5th Circuit Court of Appeals, in Proctor & Gamble went
so far as to note that speech which is not exclusively but only
“principally based on ... political convictions”, is not
sufficiently economically motivated to be classified as
commercial speech even if it “may also benefit the speaker
economically”. Proctor & Gamble at 1459.
Simply put, if “... the speech was not commercial ...
no Lanham Act claim is available”. Proctor & Gamble at 1470.
On the copyright issue, the “Vote With Me” video is a
protected fair use under the Copyright Act. The purpose of the
video is purely non-commercial political speech (see above), it
is transformative in that it has a purpose which is wholly
different than that of Orleans’ music, the amount of Orleans-
type material which is used is minimal, and there is no
potential that the video will affect the value of the Orleans
material or will be seen as a substitute for it.
In a very similar case, Ralph Nader’s presidential
campaign ran ads which parodied the MasterCard “Priceless” ad
campaign, urging that Nader’s pursuit of the truth was what was
really priceless. MasterCard sued, claiming violation of the
Copyright and Lanham Act, unfair competition, dilution and other
claims which may have been presented to you in support of taking
down “Vote With Me”
However, the Federal District Court dismissed
MasterCard’s complaint as a non-infringing fair use parody under
the Copyright Act, and also dismissed it’s other claims.
MasterCard International vs. Nader 2000, Copy.L.Rep. (CCH) P.
28, 7810 (SDNY, 2004). It is a case which I hope you too will
find supports the prompt restoration of “Vote With Me”. For
your reference, a copy is attached.
In addition, if there is a claim of cybersquatting,
which is also based on the Lanham Act, that claim fails also
because there is no “bad faith1 intent to profit” by using the
Orleans’ domain name. U.S.C. §1125(d)(1)(A)(i) and (ii)(I). In

1
Emphasis added.
addition, to state a claim the “Vote With Me” name would have to
be shown to be either identical to or confusingly similar to
Orleans’, which I believe you will agree is simply not the case.
Finally, if there is an unfair competition claim being
made, please refer to the attached Nader case, and note that
“the law of unfair competition is generally concerned with
protecting consumers from confusion as to source”. Bonita Boats
vs. Thunder Craft Boats, 489 U.S. 141, 157 (1989), from Dr.
Seuss Enterprises vs. Penguin, 25 Media Law Reporter, 1641 at
1649 fn. 12 (9th Cir. 1997). This issue of likelihood of
confusion “is the basic test for both common law Trademark
infringement and federal statutory Trademark infringement”. Id
at 1649. This video presents true political commentary, and I
respectfully suggest there is no potential or actual confusion
as to its source.
In sum, Ms. Hayworth and her supporters are attempting
to exercise one of the most basic Constitutional rights, and
believe that YouTube is an outlet which should encourage rather
than discourage this important public discussion.
Cordially,

VAN DeWATER & VAN DeWATER, LLP

By: ____/s/__________________
JAMES E. NELSON

JEN/pmh
Enclosures

cc: George T. Gilbert, Esq.

100 5th Avenue – 11th Floor
New York, NY 10011
cc: John Hicks
Douglas Cunningham
Michael Knowles